Frank Wright v. Incline Village General Improv
FILED OPINION (MICHAEL DALY HAWKINS, MILAN D. SMITH, JR. and KEVIN THOMAS DUFFY) AFFIRMED. , Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INCLINE VILLAGE GENERAL
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
November 15, 2011—San Francisco, California
Filed December 27, 2011
Before: Michael Daly Hawkins and Milan D. Smith, Jr.,
Circuit Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21299
Daniel T. Hayward (argued), Laxalt & Nomura, Ltd., Reno,
Nevada, for the plaintiff-appellant.
Stephen C. Balkenbush (argued) and Katherine F. Parks,
Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Reno,
Nevada, for the defendant-appellee.
M. SMITH, Circuit Judge:
With few exceptions, Defendant-Appellee Incline Village
General Improvement District (IVGID) only allows people
who own or rent real property within IVGID’s 1968 boundaries to access beaches that it owns and operates. PlaintiffAppellant Frank Wright (Wright), who is excluded from the
beach because he does not live within the 1968 boundaries,
argues that this policy is unconstitutional under the First
Amendment and the Equal Protection Clause of the Fourteenth Amendment. The district court granted IVGID’s
motion for summary judgment, and denied Wright’s motion
for summary judgment. We hold that the beaches are not a
traditional public forum, and that Wright’s exclusion from the
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21300 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
beaches does not violate either his First Amendment or Fourteenth Amendment rights. Accordingly, we affirm the district
FACTUAL AND PROCEDURAL BACKGROUND
IVGID is a general improvement district created under
Chapter 318 of the Nevada Revised Statutes. See Nev. Rev.
Stat. § 318.055.1. It is “a body corporate and politic and a
quasi-municipal corporation,” id. § 318.015.1, with the power
to “acquire, construct, reconstruct, improve, extend and better
lands, works, systems and facilities for recreation,” id.
In June 1968, IVGID acquired property that included,
among other real property, parcels of land commonly known
as Burnt Cedar Beach, Incline Beach, Ski Beach, and Hermit
Beach (collectively, the beaches). The land within the 1968
boundaries (1968 property) was purchased and improved with
proceeds derived from the sale of public bonds (bonds). All
payments due on the bonds were made exclusively by owners
of the 1968 property.
The deed conveying the 1968 property to IVGID contains
the following restrictive covenant (restrictive covenant):
It is hereby covenanted and agreed that the real property above described, and any and all improvements
now or hereafter located thereon, shall be held,
maintained and used by grantee, its successors and
assigns, only for the purposes of recreation by, and
for the benefit of, property owners and their tenants
(specifically including occupants of motels and
hotels) within [IVGID] as now constituted, and, as
the Board of Trustees of said District may determine,
the guests of such property owners, and for such
other purposes as are herein expressly authorized.
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21301
The deed also permits individual owners of real estate within
the 1968 property to enforce the restrictive covenant.
Section 62 of IVGID’s Ordinance No. 7 (Ordinance 7) limits access to the beaches, as required by the restrictive covenant. It provides, in pertinent part: “Deed Restrictions. Parcels
annexed to the District after May 30, 1968, are not eligible for
District beach access as per deed restrictions listed on the
IVGID designated certain portions of the 1968 property as
public fora, in Policy and Procedure Number 136 (Policy
136). Specifically, IVGID “encourages any individual or
group to use such designated public forum areas for the exercise of expression, speech and assembly, in accordance with
this Policy.” The areas designated as public fora in Policy 136
include “the parking lots, the walkways within and adjacent
to the parking lots, and the sidewalks adjacent to any public
entrance to any building open to the public . . . .” Policy 136
designates the beaches as a nonpublic forum.
Wright lives in Crystal Bay, Nevada. His real property lies
within the IVGID’s current boundaries, but is not part of the
1968 property. Because Wright does not reside or own real
property within the 1968 property, IVGID has denied him
access to the beaches.
Wright alleges that IVGID routinely ignores the restrictive
covenant, on which Ordinance 7 is based. For example, he
introduced evidence purporting to show that IVGID opens the
beaches to the general public for a fireworks display on the
Fourth of July, and allows its employees to access the beaches
even if they do not own property or reside within the 1968
Wright filed a complaint in the district court on March 10,
2008, seeking declaratory, injunctive, and monetary relief
under 28 U.S.C. § 2201, 42 U.S.C. § 1983, and 42 U.S.C.
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21302 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
§ 1988. He subsequently filed an amended complaint alleging
that Ordinance 7 and Policy 136 violate the First and Fourteenth Amendments, facially, and as applied.
The district court granted IVGID’s summary judgment
motion and denied Wright’s summary judgment motion, concluding that both Ordinance 7 and Policy 136 are constitutional. Wright timely appealed.
STANDARD OF REVIEW AND JURISDICTION
“We review a district court’s legal determinations, including constitutional rulings, de novo.” Berger v. City of Seattle,
569 F.3d 1029, 1035 (9th Cir. 2009) (en banc) (citation omitted). “A district court’s determinations on mixed questions of
law and fact that implicate constitutional rights are also
reviewed de novo.” Id. (citation omitted). When “the key
‘issues aris[e] under the First Amendment,’ we also conduct
an independent review of the facts.” Id. (quoting Rosenbaum
v. City & Cnty. of S.F., 484 F.3d 1142, 1152 (9th Cir. 2007)).
A district court’s grant or denial of summary judgment also
is reviewed de novo. Russell Country Sportsmen v. U.S. Forest Serv., ___ F.3d ___, Nos. 10-35623, 10-35784, 2011 WL
4820942, at *3 (9th Cir. Oct. 12, 2011). We have jurisdiction
under 28 U.S.C. § 1291.
On appeal, Wright contends that Ordinance 7 and Policy
136 violate the First and Fourteenth Amendments, facially
and as applied to him. To succeed on a facial constitutional
challenge, Wright must establish that Ordinance 7 and Policy
136 are “unconstitutional in every conceivable application” or
“seek[ ] to prohibit such a broad range of protected conduct
that [they are] unconstitutionally ‘overbroad.’ ” Reed v. Town
of Gilbert, 587 F.3d 966, 974 (9th Cir. 2009) (quoting Members of the City Council of the City of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 796 (1984)). To succeed on an as-
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21303
applied challenge, Wright must show that the policies are
unconstitutional as applied to him. See Legal Aid Servs. of Or.
v. Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010).
Thus, if we find that Ordinance 7 and Policy 136 are constitutional as applied to Wright, the facial challenge also fails. See
 “[T]he ‘First Amendment does not guarantee access to
property simply because it is owned or controlled by the government.’ ” Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 46 (1983) (quoting U.S. Postal Serv. v.
Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129
(1981)). The government may limit the use of properties
under its control to the uses to which the properties are lawfully dedicated. See Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S.
Ct. 2971, 2984 (2010) (citing Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc., 473 U.S. 788, 800 (1985)).
 The extent to which the government may limit access
to its properties depends on the nature of the relevant forum.
See Cornelius, 473 U.S. at 800. Government property is characterized as: (1) a traditional public forum, (2) a designated
public forum, (3) a limited public forum, or (4) a nonpublic
forum. See Christian Legal Soc’y, 130 S. Ct. at 2984 n.11;
Ark. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998)
(citing Cornelius, 473 U.S. at 802).
 A traditional public forum is government property
“which ‘by long tradition or by government fiat [has] been
devoted to assembly and debate,’ ” such as public streets and
parks. Cornelius, 473 U.S. at 802 (quoting Perry Educ. Ass’n,
460 U.S. at 45). “The proper analysis for a challenge to an
ordinance that restricts speech in a public forum is whether
the restriction is a valid time, place, and manner restriction on
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21304 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
speech.” Klein v. San Diego Cnty., 463 F.3d 1029, 1034 (9th
A designated public forum is “government property that
has not traditionally been regarded as a public forum [that] is
intentionally opened up for that purpose.” Christian Legal
Soc’y, 130 S. Ct. at 2984 n.11 (citation omitted). “Government restrictions on speech in a designated public forum are
subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555
U.S. 460, 469-70 (2009).
A limited public forum is “limited to use by certain groups
or dedicated solely to the discussion of certain subjects.” Id.
at 470 (citation omitted). “In such a forum, a government
entity may impose restrictions on speech that are reasonable
and viewpoint-neutral.” Id. (citation omitted).
A nonpublic forum is government property that does not
“by tradition or designation, serve as a forum for public communication; content-based restrictions in nonpublic fora need
only be reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.”
Preminger v. Peake, 552 F.3d 757, 765 (9th Cir. 2008) (citation and internal quotation marks omitted).
Whether the beaches are a traditional public forum
Wright contends that the beaches are a traditional public
forum, and that Ordinance 7 and Policy 136 are not valid
time, place, and manner restrictions on speech.
 We consider three factors in determining whether government property is a traditional public forum: (1) “the actual
use and purposes of the property, particularly status as a public thoroughfare and availability of free public access to the
area,” (2) “the area’s physical characteristics, including its
location and the existence of clear boundaries delimiting the
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21305
area,” and (3) “traditional or historic use of both the property
in question and other similar properties.” ACLU of Nev. v.
City of Las Vegas, 333 F.3d 1092, 1100-01 (9th Cir. 2003)
(citations omitted). Here, each of the three factors weighs in
favor of finding that the beaches are not a traditional public
forum, and we so hold.1
Actual use and purposes of property
 The beaches are not public thoroughfares. Persons who
do not own or rent a portion of the 1968 property are, with
minor exceptions, not given access to the beaches. Instead, to
be admitted to the beaches, a person must display identification to a guard at a kiosk showing eligibility for beach access.
Although the kiosks are generally not staffed in the late fall,
winter, and early spring, and the restrictions on beach access
are not aggressively enforced during those seasons, Ordinance
7 clearly states that limitations on beach access still apply.
 Only the owners of the 1968 property paid for the
acquisition and improvement of the beaches, and the admission of the general public to the beaches would violate the
restrictive covenant, which can be enforced by both the
IVGID and private property owners within the 1968 property.
The restrictive covenant specifies that the beaches are to be
“held, maintained and used by [IVGID] . . . only for the purposes of recreation by, and for the benefit of, [the 1968 property] owners and their tenants . . . .” Although there have been
some de minimis exceptions, the beaches have been used
almost exclusively by owners and tenants of the 1968 property. That only a limited set of property owners may access
the beaches for limited, non-expressive purposes also weighs
against finding the beaches to be a traditional public forum.
See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 682-83 (1992) (holding that an airport terminal is
The parties do not dispute that IVGID is a government entity that must
comply with the First Amendment.
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21306 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
not a public forum, partly because Port Authority management considered the principal purpose of the terminals to be
the facilitation of passenger air travel, not the promotion of
 With de minimis exceptions, the “actual use and purposes” of the beaches are, and have been, consistently
restricted by the covenant, Ordinance 7, and the actual practice of IVGID. Moreover, there is no evidence in the record
that the beaches are used, or have ever been used, to provide
a place for people to express themselves, such as at a town
commons or a park. Had such uses occurred, they would have
clearly violated the restrictive covenant, and could have been
challenged by both the IVGID and any person owning a portion of the 1968 property.
Area’s physical characteristics
 The beaches’ physical characteristics also weigh
against finding them to be a traditional public forum. See Lee,
505 U.S. at 680 (“[S]eparation from acknowledged public
areas may serve to indicate that the separated property is a
special enclave, subject to greater restriction.” (citing United
States v. Grace, 461 U.S. 171, 179-80 (1983))).3
See also United States v. Kokinda, 497 U.S. 720, 728-30 (1990) (plurality opinion) (considering that the actual purpose of a postal sidewalk is
to assist postal patrons in negotiating the space between the parking lot
and the front door of the post office, not to facilitate general commerce,
in finding that postal sidewalks were not public fora); Greer v. Spock, 424
U.S. 830, 837-38 (1976) (considering that the primary purpose of a fort
is to train soldiers in concluding that a fort was not a public forum
although civilians were freely permitted to visit unrestricted areas).
See also Ctr. for Bio-Ethical Reform, Inc. v. City & Cnty. of Honolulu,
455 F.3d 910, 920 (9th Cir. 2006) (considering the physical separation of
airspace from ground and beaches, that special equipment and authorization were required to access the airspace, and the airspace’s lack of any
typical function as a locus of expressive activity in finding the airspace to
be a nonpublic forum); cf. Venetian Casino Resort, L.L.C. v. Local Joint
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21307
 Although persons who are lawfully granted access to
the beaches may swim, play games, rest, and enjoy the surroundings at the beaches as they could at a typical public
park, the properties here are not ordinary public beaches.
Kiosks and gates surround the beaches, proscribing access to
anyone not entitled to access them. The kiosks and gates separate the beaches from other portions of the 1968 property that
are accessible to the general public, and clearly indicate to the
public that the beaches are not intended for the exercise of
First Amendment rights. The beaches are a special enclave,
subject to greater restriction on access than the parking lots
and other areas surrounding the beaches.
Traditional or historic use of both properties
in question and other similar properties
 The traditional and historic use of the beaches is further evidence that they are not a traditional public forum. See
Taxpayers for Vincent, 466 U.S. at 813-15 (finding that the
Constitution does not require the government to permit signs
to be posted on utility poles, partly because of the absence of
a traditional right of access to the poles); Perry Educ. Ass’n,
460 U.S. at 47-48 (considering the absence of any evidence
that access to internal school mail had been granted as a matter of course to all who sought to distribute material in finding
the school mail system was a nonpublic forum).
 Since IVGID acquired the beaches in 1968, it has generally limited access to them to the 1968 property owners and
their tenants. Although Wright presented evidence that IVGID
Exec. Bd. of Las Vegas, 257 F.3d 937, 945-48 (9th Cir. 2001) (considering
the absence of physical features distinguishing the sidewalk in front of a
casino from the connecting public sidewalks in finding the sidewalk to be
a traditional public forum); Gerritsen v. City of Los Angeles, 994 F.2d 570,
576 (9th Cir. 1993) (considering the absence of any features distinguishing
blue-line areas from other areas within a park in finding that the blue-line
areas are a public forum).
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21308 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
has, on limited occasions, allowed some persons who do not
otherwise qualify to access the beaches, their use of the
beaches has been strictly limited to brief recreational activities. No evidence suggests that the beaches ever have been
open to the general public for expressive, non-recreational
 Wright’s First Amendment argument rests largely on
the unsupported assumption that because parks are generally
public fora, the beaches here are as well. Although parks “are
considered, without more, to be ‘public forums,’ ” Grace, 461
U.S. at 177 (citations omitted), the beaches are not typical
parks. Context matters in forum analysis. See Cornelius, 473
U.S. at 799-800; Johnson v. Poway Unified Sch. Dist., 658
F.3d 954, 961 (9th Cir. 2011). Parks in general are “ ‘public
places’ historically associated with the free exercise of
expressive activities . . . .” Grace, 461 U.S. at 177 (emphasis
added). The Supreme Court thus had in mind parks with traditional characteristics, such as being open to the public, and
unencumbered by restrictions, such as the restrictive covenant
in this case, in declaring that parks in general are public
forums. See id.
Wright also relies heavily on inapposite cases from other
circuits to support his argument that the beaches are a public
forum. Tellingly, these cases involve parks and beaches readily available to the general public where property use was not
limited to recreation by deed restriction or otherwise. See,
e.g., Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1522-23
(11th Cir. 1992); Paulsen v. Lehman, 839 F. Supp. 147, 15861 (E.D.N.Y. 1993). In contrast, IVGID has historically limited access to the beaches to certain persons for recreational
uses only because it is required to do so by the restrictive covenant.
 The beaches here are similar to properties where the
government has restricted access or only allowed the public
to use portions for limited, non-expressive purposes. See, e.g.,
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21309
Ctr. for Bio-Ethical Reform, 455 F.3d at 920 (holding that the
airspace surrounding Honolulu’s beaches was a nonpublic
forum, partly because of the traditional limitations on use of
and access to airspace); Sammartano v. First Judicial Dist.
Court, 303 F.3d 959, 966 (9th Cir. 2002) (considering the traditional restrictions on use of and access to a government
complex containing public offices and courtrooms in finding
that the complex was a nonpublic forum).
 This is also not a case in which the government has
attempted to destroy or convert a public-forum park into a
nonpublic forum. There is no evidence in the record that the
beaches have ever been used as a public forum, or that there
has ever been a lapse in the application of the restrictive covenant to the beaches.
Moreover, were we to hold that IVGID could not exclude
persons from the beaches as required by the restrictive covenant, we would be removing “one of the essential sticks in the
bundle of property rights” belonging to the prior owner of the
1968 property; namely, the right to exclude others. PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74, 82 (1980). Of course,
there are some limitations on property owners’ ability to
enforce that right. See, e.g., Shelley v. Kraemer, 334 U.S. 1,
20 (1948) (holding that state courts may not enforce racially
restrictive covenants). However, the general public does not
generally have a First Amendment right to access private
property for expression. See Hudgens v. NLRB, 424 U.S. 507,
520-21 (1976) (concluding that picketers do not have a First
Amendment right to enter a privately-owned shopping center
to advertise their strike against a company); Lloyd Corp. v.
Tanner, 407 U.S. 551, 556, 570 (1972) (holding that respondents, who sought to distribute handbill invitations to a meeting to protest the draft and the Vietnam war, had no right to
do so at a privately owned and operated shopping center).
Requiring private property owners to allow the general public
to access their property to express messages the property
owners may oppose could violate the property owners’ First
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21310 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
Amendment rights. See Lloyd Corp., 407 U.S. at 552, 569-70;
see also Wooley v. Maynard, 430 U.S. 705, 707, 715, 717
(1977) (holding that a New Hampshire statute requiring vehicles to bear license plates with the state motto, “Live Free or
Die,” not obscured could not be constitutionally enforced
because it violated the defendants’ First Amendment right “to
hold a point of view different from the majority and to refuse
to foster, in the way New Hampshire commands, an idea they
find morally objectionable”).
 Were we to find that Wright has a right of access, we
would have to disregard the restrictive covenant, or declare it
unconstitutional, neither of which has been sought by Wright.
Moreover, doing so would require us to adopt two unsound
rules; namely, (1) that private property owners do not have
the right to create enforceable restrictive covenants that might
exclude some persons, when transferring property to the government, and (2) that the government does not have the right
to acquire property burdened by enforceable restrictive covenants that might exclude some persons. Furthermore, we
would have to disregard the First Amendment right of the
prior owner of the 1968 property to insist, when transferring
the 1968 property, that the property may only be used by certain property owners and their tenants for recreational purposes. See Lloyd Corp., 407 U.S. at 552, 569-70. We also
would have to disregard the First Amendment rights of the
owners of parcels benefitted by the restrictive covenant to
insist that the restrictive covenant be enforced. We decline to
do so. See, e.g., id. Thus, the beaches are not a traditional
The beaches are also not a designated public forum because IVGID has
not intentionally opened the beaches for the purpose of serving as a public
forum or for indiscriminate public use for communication purposes. See
Christian Legal Soc’y, 130 S. Ct. at 2984 n.11 (citation omitted); Alpha
Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 797 (9th Cir. 2011).
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21311
Whether the restrictions are reasonable and viewpoint neutral
 At most, the beaches are a limited public forum.
Assuming that they are, for purposes of this opinion,5 Ordinance 7 and Policy 136 do not violate the First Amendment
if they are “(1) reasonable in light of the purpose of the
forum; and (2) viewpoint neutral.” Alpha Delta Chi-Delta
Chapter, 648 F.3d at 798 (citation omitted).
Reasonableness in light of purpose of forum
 Ordinance 7 and Policy 136 are reasonable in light of
the beaches’ purpose.
 IVGID adopted Ordinance 7 because the restrictive
covenant requires that the beaches be used “only for the pur5
We assume, without deciding, that the beaches are at most a limited
public forum. Regardless of whether the beaches are a limited public
forum or a nonpublic forum, the test is the same, as several of our sister
circuits have noted. See, e.g., Victory Through Jesus Sports Ministry
Found. v. Lee’s Summit R-7 Sch. Dist., 640 F.3d 329, 334-35 (8th Cir.
2011); Byrne v. Rutledge, 623 F.3d 46, 54 n.8 (2d Cir. 2010); Miller v.
City of Cincinnati, 622 F.3d 524, 535-36 (6th Cir. 2010); Christian Legal
Soc’y v. Walker, 453 F.3d 853, 865 n.2 (7th Cir. 2006); Goulart v. Meadows, 345 F.3d 239, 252 n.23 (4th Cir. 2003); cf. Galena v. Leone, 638 F.3d
186, 197 n.8 (3d Cir. 2011) (stating that “[r]ecently the Court has used the
term ‘limited public forum’ interchangeably with ‘nonpublic forum,’ thus
suggesting that these categories of forums are the same[,]” and declining
to distinguish between limited public fora and nonpublic fora) (citations
omitted). Compare Ctr. for Bio-Ethical Reform, 455 F.3d at 915, 920 (stating that an ordinance prohibiting aerial advertising in a nonpublic forum
“does not violate the First Amendment as long as it is ‘(1) reasonable in
light of the purpose served by the forum and (2) viewpoint neutral’ ”
(quoting Brown v. Cal. Dep’t of Transp., 321 F.3d 1217, 1222 (9th Cir.
2003))), with Alpha Delta Chi-Delta Chapter, 648 F.3d at 798 (stating that
plaintiffs’ exclusion from a limited public forum “is permissible if San
Diego State’s requirement that student groups adhere to the nondiscrimination policy is (1) reasonable in light of the purpose of the forum; and
(2) viewpoint neutral”) (citation omitted).
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21312 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
poses of recreation by, and for the benefit of, property owners
and their tenants (specifically including occupants of motels
and hotels) within [IVGID] as . . . constituted” in 1968. The
covenant is still enforceable by owners of portions of the 1968
property. In restricting access to the beaches, Ordinance 7
expressly references the restrictive covenant. The fact that
only owners of portions of the 1968 property paid for the purchase and improvement of the beaches also strongly supports
Ordinance 7’s reasonableness.
Similarly, Policy 136’s restrictions on expression at the
beaches by the general public are reasonable in light of the
forum’s purpose.6 IVGID is subject to a restrictive covenant
requiring it to limit access to the beaches to owners and tenants of the 1968 property, and that the beaches be used for
recreational purposes only. Allowing Wright and other members of the general public to access the beaches for expressive, non-recreational purposes would violate the restrictive
covenant in two ways: (1) by permitting ineligible persons to
access the beaches, and (2) by permitting the beaches to be
used for non-recreational purposes.
 Ordinance 7 and Policy 136 are viewpoint neutral. See
Alpha Delta Chi-Delta Chapter, 648 F.3d at 800 (“[A] restriction that ‘serves purposes unrelated to the content of expression’ and only incidentally burdens some speakers, messages,
or viewpoints ‘is deemed neutral.’ ” (quoting Christian Legal
Soc’y, 130 S. Ct. at 2994)).
Whether Policy 136 actually limits expression at the beaches is
unclear. It simply designates certain portions of the 1968 property as public fora and the remaining areas of the 1968 property, including the
beaches, as nonpublic fora. It does not criminalize or provide any penalties
or consequences for expression on the beaches. Its sole purposes seems to
be opening some non-beach portions of the 1968 property to the general
public for expression, and emphasizing that the remaining areas are not
open to the general public for expression.
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21313
 Ordinance 7’s exclusion of certain persons from the
beaches has nothing to do with the ideology, opinion, or perspective of persons seeking access. See id. (“’Viewpoint discrimination is . . . an egregious form of content
discrimination,’ and occurs when ‘the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction [on speech].’ ” (quoting Truth v. Kent
Sch. Dist., 542 F.3d 634, 649-50 (9th Cir. 2008), overruled on
other grounds, L.A. Cnty. v. Humphries, 131 S. Ct. 447, 45051 (2010))) (alterations in original). By its terms, Ordinance
7 does not limit access based on viewpoint, nor does it even
address viewpoint. Instead, it limits access exclusively based
on property ownership or occupancy, as required by the
 Similarly, Policy 136 does not limit speech at the
beaches based on the ideology, opinion, or perspective of persons seeking access for expression. The only limitation on
speech is that the beaches may, under the restrictive covenant,
be used only for recreational purposes. The clear purpose of
Policy 136 is to honor that requirement. Therefore, Policy 136
does not discriminate based on viewpoint to the extent it limits speech at the beaches. See Alpha Delta Chi-Delta Chapter,
648 F.3d at 800.
Wright also appears to contend that Policy 136 is unconstitutional under the First Amendment because it restricts speech
in designated public forum areas. He is mistaken. Policy 136
expressly designates certain non-beach areas within the 1968
property as public fora, available to any individual or group
for purposes of expression, speech, and assembly. Any
restrictions on speech within such a designated area “are subject to strict scrutiny and, therefore, ‘must be narrowly tailored to serve a compelling government interest.’ ” Alpha
Delta Chi-Delta Chapter, 648 F.3d at 797 (quoting Christian
Legal Soc’y, 130 S. Ct. at 2984 n.11). However, all restrictions on activities in the designated public forum areas of the
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21314 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
1968 property meet that standard, and thus violate no constitutional requirements.
 Because Ordinance 7 and Policy 136 are reasonable in
light of the purpose of the forum and are viewpoint neutral,
they do not violate the First Amendment. See id. at 798 (citation omitted). Because the policies are constitutional as
applied to Wright, they also are not facially unconstitutional.
Equal Protection Clause of the Fourteenth
 “The Equal Protection Clause does not forbid classifications.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “It simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.” Id.
(citation omitted); see also Honolulu Weekly, Inc. v. Harris,
298 F.3d 1037, 1047 (9th Cir. 2002) (“The Equal Protection
Clause directs that ‘all persons similarly circumstanced shall
be treated alike.’ ” (quoting Plyler v. Doe, 457 U.S. 202, 216
(1982))). “Evidence of different treatment of unlike groups
does not support an equal protection claim.” Thornton v. City
of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (citation
Wright argues that both Ordinance 7 and Policy 136 violate
the Equal Protection Clause of the Fourteenth Amendment,
facially, and as applied to him. He contends that owners of the
1968 property, and owners of property within IVGID’s current boundaries other than the 1968 property, are similarly situated, but are treated differently under Ordinance 7 and
Policy 136, in violation of the Equal Protection Clause. He
also asserts that Ordinance 7 and Policy 136 violate the Equal
Protection Clause because they discriminate among speechrelated activities in a public forum.
 Ordinance 7 treats persons differently because it limits access to the beaches to owners and tenants of the 1968
Page: 18 of 21
WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21315
property. Persons eligible for beach access and persons not
eligible for beach access under Ordinance 7 are not similarly
situated. Only owners of portions of the 1968 property paid
for the purchase and improvement of the beaches. Moreover,
giving Wright access to the beaches would violate the terms
of the restrictive covenant, unlike the admission of persons
eligible for beach access under Ordinance 7. Because the two
groups are not alike in all relevant respects, Wright’s evidence
of disparate treatment does not support his equal protection
claim. See Nordlinger, 505 U.S. at 10; Thornton, 425 F.3d at
1168. Because Wright has no evidence that similarly situated
persons are treated differently, his equal protection claim fails
ab initio. See Nordlinger, 505 U.S. at 10; Thornton, 425 F.3d
at 1167-68; see also Van Susteren v. Jones, 331 F.3d 1024,
1026-27 (9th Cir. 2003) (finding no equal protection violation
because two groups of candidates were not similarly situated).
Even if Wright could offer evidence that Ordinance 7 treats
similarly situated persons differently, his equal protection
claim still would fail. “In determining whether a statute, regulation, or ordinance violates the Equal Protection Clause of
the United States Constitution, we begin our analysis by
determining the proper level of scrutiny to apply for review.”
Honolulu Weekly, 298 F.3d at 1047. “We apply strict scrutiny
if the governmental enactment ‘targets a suspect class or burdens the exercise of a fundamental right.’ ” Id. (quoting
United States v. Hancock, 231 F.3d 557, 565 (9th Cir. 2000)).
“When applying strict scrutiny, we ask ‘whether the [ordinance] is narrowly tailored to serve a compelling governmental interest.’ ” Id. (quoting Ball v. Massanari, 254 F.3d 817,
823 (9th Cir. 2001)). “If the ordinance does not concern a suspect or semi-suspect class or a fundamental right, we apply
rational basis review and simply ask whether the ordinance ‘is
rationally-related to a legitimate governmental interest.’ ” Id.
(quoting Ball, 254 F.3d at 823).
Strict scrutiny does not apply when an ordinance is not
content-based, does not infringe upon a fundamental right,
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21316 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
and does not concern a suspect or semi-suspect class. See
Honolulu Weekly, 298 F.3d at 1047-48. Ordinance 7 is
content-neutral because it limits beach access based on a criterion unrelated to the content of the messages persons
requesting access seek to convey, and its purpose is not to
regulate access based on the content of speakers’ messages.
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 645-46
(1994). It also does not infringe a fundamental right because
the beaches are not a public forum. See Currier v. Potter, 379
F.3d 716, 731 (9th Cir. 2004) (“[T]he viability of equal protection claims relating to expressive conduct is contingent on
the existence of a public forum. Only when rights of access
associated with a public forum are improperly limited may we
conclude that a fundamental right is impinged.” (quoting
Monterey Cnty. Democratic Cent. Comm. v. U.S. Postal Serv.,
812 F.2d 1194, 1200 (9th Cir. 1987))). Moreover, Ordinance
7 does not target a suspect or semi-suspect class. See, e.g.,
Schnuck v. City of Santa Monica, 935 F.2d 171, 176 (9th Cir.
1991). Therefore, strict scrutiny is not appropriate, and rational basis review applies. See Honolulu Weekly, 298 F.3d at
Because rational basis review applies, “we ask whether the
ordinance is ‘rationally-related to a legitimate governmental
interest.’ ” Id. at 1048 (quoting Ball, 254 F.3d at 823). “[W]e
do not require that the government’s action actually advance
its stated purposes, but merely look to see whether the government could have had a legitimate reason for acting as it
did.” Currier, 379 F.3d at 732 (quoting Nat’l Ass’n for the
Advancement of Psychoanalysis v. Cal. Bd. of Psychology,
228 F.3d 1043, 1050 (9th Cir. 2000)). IVGID could have had
at least two legitimate reasons for adopting Ordinance 7. First,
Ordinance 7 complied with the restrictive covenant. Second,
Ordinance 7 excluded persons who did not pay for the purchase and improvement of the beaches. Ordinance 7 is a rational attempt to achieve those interests. See Honolulu Weekly,
298 F.3d at 1048.
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WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT 21317
 In sum, Ordinance 7 is constitutional as applied to
Wright. Thus, his facial challenge also fails.
 Wright also claims that Policy 136 violates the Equal
Protection Clause. Policy 136 treats persons differently to the
extent it permits persons entitled to beach access to express
themselves on the beaches, but requires the general public to
express itself only in designated public forum areas.7 Even if
we assume that Policy 136 contains such a restriction, however, the groups allegedly treated differently are not similarly
situated. Allowing Wright or any other member of the general
public to access the beaches for any purpose would violate the
restrictive covenant. In contrast, allowing owners of portions
of the 1968 property and their tenants to access the beaches
does not violate the restrictive covenant. Therefore, Policy
136 does not treat similarly situated persons differently, and
his equal protection claim fails on this basis alone. See Nordlinger, 505 U.S. at 10; Thornton, 425 F.3d at 1168.
Even if Wright had demonstrated that Policy 136 treated
similarly situated persons differently, his equal protection
claim still would fail because Policy 136 is content neutral.
The restrictive covenant requires IVGID to exclude Wright
and the general public from the beach. The exclusion has
nothing to do with the content of Wright’s speech. See Turner
Broad. Sys., 512 U.S. at 645-46; Honolulu Weekly, 298 F.3d
at 1044. Because the beaches are not a public forum, Policy
136 does not infringe a fundamental right. See Currier, 379
F.3d at 731. Moreover, it does not target a suspect or semisuspect class. See, e.g., Kraebel, 959 F.2d at 401-02; Schnuck,
935 F.2d at 176. Therefore, Policy 136 would be subject to
It is unclear whether Policy 136 permits persons entitled to access to
use the beaches for expressive, non-recreational purposes. By its terms, it
only designates certain areas as public fora and other areas, including the
beaches, as nonpublic fora.
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21318 WRIGHT v. INCLINE VILLAGE GENERAL IMPROVEMENT
rational basis review, not strict scrutiny. See Honolulu
Weekly, 298 F.3d at 1047-48.
 Policy 136 survives rational basis review because it is
justified by legitimate government interests: complying with
the restrictive covenant, and excluding persons who did not
pay for the purchase and improvement of the beaches. Therefore, Policy 136 does not violate the Equal Protection Clause,
facially, or as applied to Wright.8 See id. at 1048.
Because Ordinance 7 and Policy 136 are constitutional, we
hold that the district court did not err in granting IVGID’s
summary judgment motion and denying Wright’s summary
judgment ruling, and we affirm.
Allowing persons entitled to access the beaches to express themselves
on the beaches would arguably violate the restrictive covenant to the
extent such uses are non-recreational. Nevertheless, equal protection does
not require IVGID “to eliminate all evils in order to legislate against
some.” United States v. McDougherty, 920 F.2d 569, 572 (9th Cir. 1990)
(citing United States v. Thornton, 901 F.2d 738, 740 (9th Cir. 1990)); see
also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981)
(“The Equal Protection Clause does not deny the State of Minnesota the
authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the
market, is permitted to continue in use.”). That principle holds true where,
as here, rational basis review applies. See Clover Leaf Creamery Co., 449
U.S. at 461, 466; Vance v. Bradley, 440 U.S. 93, 97, 108 (1979); Taylor
v. Rancho Santa Barbara, 206 F.3d 932, 936-37 (9th Cir. 2000); Roe v.
Marcotte, 193 F.3d 72, 82 (2d Cir. 1999). Therefore, the arguable failure
of Policy 136 to prevent all possible violations of the restrictive covenant
does not render it unconstitutional. See Clover Leaf Creamery Co., 449
U.S. at 466.
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